PROTECTING AMERICA’S FREEDOM IN THE INFORMATION AGE A REPORT OF THE MARKLE FOUNDATION TASK FORCE October 2002 A Project of The Markle Foundation, New York City In Alliance with Miller Center of Public Affairs, University of Virginia The Brookings Institution, Washington, D.C. Center for Strategic and International Studies, Washington, D.C. THE MARKLE FOUNDATION TASK FORCE ON NATIONAL SECURITY IN THE INFORMATION AGE Chairmen John Gage Participating Experts Sun Microsystems, Inc. (Non-government) Zoë Baird Markle Foundation Slade Gorton Bruce Berkowitz Preston Gates & Ellis RAND Corporation James L. Barksdale The Barksdale Group Morton H. Halperin Robert Clerman Open Society Institute Mitretek Executive Director Margaret A. Hamburg Mary DeRosa Philip Zelikow Nuclear Threat Initiative Center for Strategic and International Miller Center of Public Affairs Studies University of Virginia John J. Hamre Center for Strategic and International Lauren Hall Members Studies Microsoft Alexander Aleinikoff Eric Holder James Lewis Georgetown University Law Center Covington & Burling Center for Strategic and International Studies Robert D. Atkinson Arnold Kanter Progressive Policy Institute The Scowcroft Group Gilman Louie In-Q-Tel Stewart A. Baker Robert Kimmitt Steptoe & Johnson AOL Time Warner, Inc. Douglas McDonald Abt Associates Eric Benhamou Michael O. Leavitt 3Com Corp. and Palm, Inc. Governor of Utah Daniel Ortiz University of Virginia Jerry Berman Tara Lemmey School of Law Center for Democracy and Project LENS Technology Michael Vatis Judith A. Miller Institute for Security and Technology Robert M. Bryant Williams & Connolly Studies National Insurance Crime Bureau Dartmouth College James H. Morris Ashton Carter Carnegie Mellon University Task Force Staff Harvard University Craig Mundie Mary McKinley Wesley Clark Microsoft Associate Director Stephens Group, Inc. Jeffrey H. Smith Ryan Coonerty Wayne Clough Arnold & Porter Government Affairs Counsel Georgia Institute of Technology Abraham D. Sofaer Peter Kerr William P. Crowell Hoover Institution Markle Foundation Cylink Corporation Stanford University Laura Rozen Sidney D. Drell James B. Steinberg Senior Associate Stanford University The Brookings Institution Tara Sonenshine Esther Dyson Paul Schott Stevens Advisor EDventure Holdings Dechert Stefaan Verhulst Amitai Etzioni Rick White Markle Foundation The George Washington University TechNet David J. Farber University of Pennsylvania Copyright © 2002 Markle Foundation All rights reserved ISBN 0-9725440-0-3 TABLE OF CONTENTS 1 Overview 5 Acknowledgments PART ONE:THE TASK FORCE REPORT 10 A Networked and Nationwide Analytic Community 12 Connecting for Security 20 Organizing the National Homeland Security Community 25 What the Analysts Should Do 27 Linking Analysis to Protective Action: Using Watch-Out Lists 31 Guidelines to Balance Privacy and Security 37 … And Training People to Do the Work 37 Roles and Risks for the Private Sector 37 Exploiting America’s IT Advantage PART TWO:WORKING GROUP ANALYSES 45 Analytic Methods 53 Acquiring Information-Related Technology 69 Organizational Challenges PART THREE:SELECTED BACKGROUND RESEARCH 81 A Primer on the Changing Role of Law Enforcement and Intelligence in the War on Terrorism By Robert M. McNamara, Jr. 93 Legal Authorities for “All-Source” Domestic Intelligence By Daniel R. Ortiz Markle Foundation v 101 Domestic Security in the United Kingdom: An Overview By Joanna Ensum 113 Information Sharing at the FBI By Laura Rozen 127 Limitations upon Interagency Information Sharing: The Privacy Act of 1974 By Sean Fogarty and Daniel R. Ortiz 133 Federal Legal Constraints on Electronic Surveillance By Jeffrey H. Smith and Elizabeth L. Howe 149 Federal Legal Constraints on Profiling and Watch Lists By Eric Braverman and Daniel R. Ortiz 161 The Regulation of Disclosure of Information Held by Private Parties By Stewart A. Baker vi Markle Foundation OVERVIEW The geographical boundaries of national security have changed. America has become a potential battlefield for major assaults. Yet, though our military has deeply integrated intelligence and informa- tion technology into war fighting, we have not developed a similarly sophisticated use of information and information technology to protect Americans from attacks at home. Information analysis is the brain of homeland security. Used well, it can guide strategic, timely moves throughout our country and around the world. Done poorly, even armies of guards and analysts will be useless. The Task Force that we had the privilege of chairing has reached some important conclu- sions to assist our nation in developing its information collection and analysis capabilities. The federal government is preparing to spend nearly $40 billion a year to protect the homeland. While this report takes no position on any pending legislation, the White House has developed the important concept of homeland security, the centerpiece of which is the Department of Homeland Security (DHS). But almost no dollars have been directed to creating the capacity for the sharing of informa- tion and integrating the way it is analyzed, so that out of information collection comes enhanced knowledge. Neither the White House nor the current appropriations pipeline for the new Department of Homeland Security have yet identified the money to turn information collection into knowledge. With even relatively small sums of money, however, tremendous gains can be made. The new Department of Homeland Security can be the central hub for decisions about what information needs to be collected and stored—in the government or in the private sector—and about where the infor- mation should be analyzed and how. The DHS can help develop rules for protecting the well-estab- lished liberties of our citizens when information is collected and used. And it can support meaningful research and development efforts. This report describes how. To protect our freedoms, our task—as in previous generations—is to craft the national framework that will draw on this generation’s and this society’s greatest strengths. To protect freedom, America’s physical safety is essential. Protecting freedom also requires securing the values that define America, including the civil liberties and rights to privacy that make our country special. Rights go together with responsibilities in preserving the public order in which our values can flourish. When Americans feel they must start trading fundamental rights in return for more security, we will know our national security policies are failing. The rule of law is our strength. Fortunately, to paraphrase John Paul Jones, we have not yet begun to fight. We have not taken adequate and thoughtful advantage of the laws and resources that are already available. We have barely begun to create a serious domestic intelligence capability, one that learns from the abuses of the past and uses the powers that can already be brought to hand. We have not yet begun to mobilize our society’s strengths in information, intelligence, and technology. The Task Force agrees that the U.S. government needs the proposed Department of Homeland Security. But, to us, the most compelling argument for the DHS is that it is a necessary foundation for building entirely new capacities for national action. We need to train people, sponsor research, and cre- Markle Foundation 1 ate systems that use information in new ways, finding smarter and more cost-effective strategies that provide both real security and real accountability. Meanwhile, every agency is rushing out to collect information and buy technology for its own stovepiped systems. As they do so, with congressional and citizen watchdogs trying to chase them across the political countryside, one Task Force member spoke for the group when he warned that, “We may end up getting all of the disadvantages of invasion of privacy with none of the national security gains.” Instead of matching unguided power with unfocused oversight, there is a better approach that borrows from best practices in public and private management: telling officials what they can do, as well as set- ting the limits on their power. Start by spelling out the kind of information and analysis the country really needs. The solutions start in the way people think and work together. This report illustrates the kind of roadmap that can guide them. Technology is not a panacea. Those who have called for endless mining of vast new government data warehouses to find intricate correlations are not offering the promise of real security. They instead evoke memories of the walls of clippings collected by the paranoid genius, John Nash, in A Beautiful Mind. Knowledge of the world and those who would do us harm is what is needed. Knowledge does not come from the accumulation of random data, but rather it is found in thoughtful and informed inquiries. Great progress can be made just with sensible, straightforward use of relatively simple tools and already-collected data. Inexpensive data checks, strategically planned, should have been able to prevent the 9/11 attacks. Yet, then, the government lacked the capacities to perform them. Now, more than a year later, the government still has not acquired them. With this improved definition of the analytic task, the President should issue well-crafted operating guidelines for all federal agencies to encourage confident performance. Only the President can estab- lish and be accountable for the proper balance between development of domestic intelligence and preservation of liberty.